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Emily J. A. v. Saul

United States District Court, D. Maine

January 13, 2020

EMILY J. A., Plaintiff
v.
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant

          REPORT AND RECOMMENDED DECISION [2]

          John H. Rich, III United States Magistrate Judge.

         This Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge (“ALJ”) supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ erred in (i) exhibiting and considering the adverse decision of a prior ALJ, (ii) concluding that her physical impairments did not meet Listing 1.02A, Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”), (iii) concluding that her mental impairments did not meet Listings 12.04 or 12.06, and (iv) assessing her residual functional capacity (“RFC”). See Plaintiff's Statement of Errors (“Statement of Errors”) (ECF No. 12) at 5-20. I find no harmful error and, accordingly, recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 416.920; Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff had the severe impairments of obesity, major joint dysfunction, affective disorder, anxiety disorder, and disorder of the muscles, ligaments, and fascia, Finding 2, id. at 14; that she did not have an impairment or combination of impairments that met or medically equaled the severity of any of the Listings, Finding 3, id. at 16; that she had the RFC to perform light work as defined in 20 C.F.R. §416.967(b), except that, in an eight-hour workday, she could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, could never climb ladders, ropes, or scaffolds, and was able to perform simple routine tasks and adapt to simple changes in work routine, but could never work with the general public, Finding 4, id. at 18; that, considering her age (36 years old, defined as a younger individual, on the date her application was filed, June 4, 2015), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 6-9, id. at 27-28; and that she, therefore, had not been disabled from June 4, 2015, the date her application was filed, through May 30, 2018, the date of the decision, Finding 10, id. at 28-29. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. § 416.1481; Dupuis v. Sec'y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

         The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. § 1383(c)(3); Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The ALJ reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than her past relevant work. 20 C.F.R. § 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         The statement of errors also implicates Steps 3 and 4 of the sequential evaluation process. At Step 3, the claimant bears the burden of proving that her impairment or combination of impairments meets or equals a listing. 20 C.F.R. § 416.920(d); Dudley v. Sec'y of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant's impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. § 416.925(c)(3). To equal a listing, the claimant's impairment(s) must be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 416.926(a).

         At Step 4, the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 416.920(f); Bowen, 482 U.S. at 146 n.5. At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. § 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         I. Discussion

         A. Asserted Error in Exhibiting, Considering Prior ALJ Decision

         The plaintiff first contends that the ALJ violated her due process rights in summarily overruling her counsel's objection at hearing to the inclusion in the record of a prior ALJ's adverse decision dated October 31, 2013 (the “2013 Decision”). See Statement of Errors at 5-7; Record at 40-41, 325-36.

         “[A]pplicants for social security disability benefits are entitled to due process in the determination of their claims.” Holohan v. Massanari, 246 F.3d 1195, 1209 (9th Cir. 2001); see also, e.g., Yount v. Barnhart, 416 F.3d 1233, 1235 (10th Cir. 2005) (“Social security hearings are subject to procedural due process considerations.”). “At a minimum, the Constitution requires notice and some opportunity to be heard. Above that threshold, due process has no fixed content; it is flexible and calls for such procedural protections as the particular situation demands.” Mallette v. Arlington Cty. Employees' Supplemental Ret. Sys. II, 91 F.3d 630, 640 (4th Cir. 1996) (citations and internal quotation marks omitted); see also, e.g., Eze v. Gonzáles, 478 F.3d 46, 47 (1st Cir. 2007) (“[N]otice and an opportunity to be heard together comprise an essential principle of due process[.]”) (citations and internal quotation marks omitted).

         To be entitled to remand on this basis, a Social Security claimant must demonstrate not only the existence of a due process violation but also resulting prejudice. See, e.g., Chuculate v. Barnhart, 170 Fed.Appx. 583, 587 (10th Cir. 2006) (rejecting claim of due process violation predicated on ALJ's denial of permission to submit post-hearing written question to vocational expert when “the ALJ's failure to forward plaintiff's unsupported question does not undermine confidence in the result in this case”); Adams v. Massanari, 55 Fed.Appx. 279, 286 (6th Cir. 2003) (“Clearly, in this case, the procedure used by the ALJ did not erroneously deprive Appellant of her interest in the fair determination of her eligibility for benefits, since the ALJ's decision to withhold [a post-hearing] report from the ME [medical expert] had no determinative effect on the outcome of Appellant's hearing.”).

         The plaintiff falls short of showing either the existence of a procedural due process violation or resulting prejudice.

         As the commissioner observes, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 16) at 2, agency policy requires ALJs to associate a prior hearing decision with a claimant's file, see Social Security Administration, Hearings, Appeals, and Litigation Law Manual (“HALLEX”) § I-2-6-58(B) (“If there was a prior ALJ decision, the ALJ must associate the prior ALJ decision with the current claim(s) file.”). The plaintiff's counsel, nonetheless, represented at oral argument that, in his experience, ALJs have either exercised discretion to exclude such decisions when he has objected on due process grounds or at least explained why the objection has been overruled.

         However, in keeping with the requirements of the HALLEX, the ALJ in this case heard and ruled on the plaintiff's objection. See Record at 40-41; HALLEX § I-2-6-58(C) (ALJs must ask claimant or claimant's representative, if any, whether he or she has “any objections to admitting the proposed exhibits into the record” and then “[r]ul[e] on any objections to the proposed exhibits”). The plaintiff cites no authority for the proposition that, as a matter of constitutional due process, more was required, see Statement of Errors at 5-7, failing to demonstrate entitlement to remand on the basis of a due process violation, see, e.g., Getchell v. Soc. Sec. Admin. Comm'r, No. 1:10-cv-00424-JAW, 2011 WL 4458983, at *6 (D. Me. Sept. 22, 2011) (rec. dec., aff'd Oct. 13, 2011) (declining to find a constitutional violation in the absence of citation to authority).

         In any event, even assuming error, the plaintiff falls short of demonstrating that the error was prejudicial. While the plaintiff speculates that the ALJ considered and adopted the prior ALJ's opinions rather than undertaking a de novo assessment, see Statement of Errors at 6, the ALJ's decision on its face indicates otherwise. First, she mentioned the 2013 Decision solely in the context of observing that, “[i]n light of the current alleged onset date of June 1, 2015, reopening of the prior unfavorable decision is not currently at issue.” Record at 12. Second, she did not adopt the same RFC as the prior ALJ. Compare Finding 4, id. at 18 with Finding 5, id. at 331. She discussed in detail the evidence postdating the 2013 Decision, including the plaintiff's testimony, expert opinions, medical records, and evidence of the plaintiff's activities, see id. at 19-27, and her physical RFC finding is identical to that set forth in the March 8, 2016, opinion of agency nonexamining consultant J.H. Hall, M.D., compare Finding 4, id. at 18 with id. at 373-74, which she accorded “greatest weight[, ]” id. at 27. At bottom, the plaintiff makes no persuasive case that the ALJ's inclusion of the 2013 Decision in the record led to a different outcome.[3]

         Remand, accordingly, is unwarranted on the basis of this point of error.

         B. Challenge to Finding re: Listing 1.02A

         The plaintiff next contends that the ALJ erred in determining that her impairments did not meet Listing 1.02A, pertaining to major dysfunction ...


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